21 F.4th 453
7th Cir.2021Background
- Two Chicago police officers (Sgt. Xavier Elizondo and Officer David Salgado) used their gang‑team positions to steal cash and drugs from searches and to steer proceeds to informants; they also encouraged informants to give false information to obtain search warrants.
- The FBI opened a corruption investigation, used a confidential source (Cuba), and ran two stings: a Maplewood apartment with $15,000 and hidden cameras (officers inventoried the cash after discovering cameras), and an FBI‑controlled rental car with $18,200 (officers seized cash and inventoried only $14,000).
- The government obtained a Title III wiretap order for narcotics and wire‑fraud predicates and later sought post‑interception authorization to use intercepted communications for other offenses, including embezzlement and obstruction.
- After the rental‑car stop, Elizondo told Salgado to “relocate” items from Salgado’s home; both deleted call records. The defendants were indicted on conspiracy, theft, obstruction, and related counts; tried together and convicted on all counts.
- On appeal they challenged: (1) the wiretap (alleged Title III subterfuge), (2) the district court’s sua sponte Batson handling during jury selection, (3) sufficiency of evidence on the obstruction count, and (4) the Sentencing Guidelines intended‑loss calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wiretap / subterfuge(search) | Gov’t: Title III application described a narcotics/wire‑fraud investigation; interceptions of other crimes were incidental and later authorized by timely post‑interception application. | Elizondo/Salgado: Govt used a Title III predicate as a pretext to investigate non‑Title III offenses (embezzlement/theft), so the wiretap was a subterfuge. | Wiretap lawful: application was forthright, probable cause for narcotics existed, incidental interceptions permitted, post‑interception authorization validated use. |
| Batson and jury selection procedure | Gov’t: Court followed Batson steps, no burden shift, and any error was harmless because no juror bias is alleged. | Defendants: Court sua sponte raised Batson, shifted burden to defense, and rushed voir dire producing structural error. | No reversible error: court followed Batson, did not impermissibly shift burden, and any error was harmless; warning that sua sponte Batson should be used sparingly. |
| Sufficiency of evidence on obstruction (18 U.S.C. §1512) | Gov’t: recorded calls and testimony show Elizondo knew an investigation was underway and intended to impair a foreseeable official proceeding by instructing concealment. | Elizondo: No evidence he foresaw a federal grand‑jury proceeding when he told Salgado to relocate evidence. | Conviction affirmed: jury could infer foreseeability from Elizondo’s FBI experience and subsequent statements; §1512 requires foreseeability of a proceeding, not knowledge of a particular one. |
| Sentencing — intended loss under U.S.S.G. §2B1.1 | Gov’t: intended loss includes funds the defendants intended to steal (including some of the $15,000 in Maplewood) even if a sting prevented actual theft. | Defendants: Cannot include the $15,000 because they never took it; intended loss completes only when funds are actually misappropriated. | Loss calculation affirmed: intended loss covers amounts defendants put at risk and intended to take; district court’s finding (>$6,500) not clearly erroneous. |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (1986) (framework for challenging racially motivated peremptory strikes)
- United States v. Arnold, 773 F.2d 823 (7th Cir. 1985) (§2517(5) and prevention of Title III subterfuge searches)
- United States v. McKinnon, 721 F.2d 19 (1st Cir. 1983) (incidental interception during bona fide wiretap investigations)
- United States v. Santiago, 905 F.3d 1013 (7th Cir. 2018) (standard of review for district court findings on suppression)
- Miller‑El v. Dretke, 545 U.S. 231 (2005) (comparing struck juror to nonstruck jurors as evidence of pretext at Batson step three)
- United States v. Johnson, 655 F.3d 594 (7th Cir. 2011) (§1512 foreseeability—need not show knowledge of a particular proceeding)
- United States v. Strozier, 981 F.2d 281 (7th Cir. 1992) (intended loss includes amounts defendants intended to obtain even if not actually taken)